Friday, July 17, 2009

In the midst of the most serious global economic crisis since the Great Depression, it seems pertinent to reform the current system of global economic governance. There is a widely shared assumption that a new Group of 20 nations (G-20), represented by their Finance Ministers and Central Bank Governors, may succeed the Group of 7 (G-7) in re-shaping the future of the global economic architecture. This paper addresses the importance of re-shaping the pillars of global economic governance, provides an analysis of the G-20 as the forum for such an initiative, acknowledges multipolarity and the rise of regionalism as the new global reality, and notes the lack of coordination between multilateral and regional mechanisms of economic governance.

Arbitration continues to grow in Latin America and the region has become one of the important users of the system. However, in some places of Latin America the current foreign investment protection regime and established principles of international arbitration have been questioned (e.g. Venezuela, Ecuador and Bolivia).

In the light of the multi - faceted aspects of dispute resolution in the region, Transnational Dispute Management (TDM) has decided to prepare a special edition on Latin America. Dr. Herfried Wöss will act as special editor, and we invite you to contribute articles.

Your article may refer to a wide range of Latin America dispute related topics, such as commercial and investment arbitration, international law, international commercial law, international economic law, intellectual property, investment disputes, international litigation, international human rights, international environmental law, WTO, NAFTA, Andean Community, MERCOSUR, FTAs, the Energy Charter Treaty, and International Investment Agreements (IIAs) in general, provided they have a relationship to the region.

The concept of network has emerged as an intellectual centerpiece for our era. Network analysis also occupies a growing place in many of the social sciences. In international relations, however, network has too often remained a metaphor rather than a powerful theoretical perspective. In Networked Politics, a team of political scientists investigates networks in important sectors of international relations, including human rights, security agreements, terrorist and criminal groups, international inequality, and governance of the Internet. They treat networks as either structures that shape behavior or important collective actors. In their hands, familiar concepts, such as structure, power, and governance, are awarded new meaning.

This article explores whether World Trade Organization (‘WTO’) panels and the Appellate Body (‘WTO Tribunals’) have the power to apply certain principles of international law by reason of their judicial character, and because the application of these principles is necessary for the proper exercise of their judicial function. In other words, do WTO Tribunals have an inherent jurisdiction? If so, what are some of the principles they might apply? What are the general limits of this jurisdiction?

International relations are generally understood as a realm of anarchy in which countries lack any superior authority and interact within a Hobbesian state of nature. In Hierarchy in International Relations, David A. Lake challenges this traditional view, demonstrating that states exercise authority over one another in international hierarchies that vary historically but are still pervasive today.

Revisiting the concepts of authority and sovereignty, Lake offers a novel view of international relations in which states form social contracts that bind both dominant and subordinate members. The resulting hierarchies have significant effects on the foreign policies of states as well as patterns of international conflict and cooperation. Focusing largely on U.S.-led hierarchies in the contemporary world, Lake provides a compelling account of the origins, functions, and limits of political order in the modern international system. The book is a model of clarity in theory, research design, and the use of evidence. Motivated by concerns about the declining international legitimacy of the United States following the Iraq War, Hierarchy in International Relations offers a powerful analytic perspective that has important implications for understanding America's position in the world in the years ahead.

International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for a reconsideration of Appropriate Dispute Resolution (ADR) methods for resolving investment treaty conflict and highlights the costs and benefits of particularized dispute resolution methods, including preventative, negotiated, facilitated, fact-finding, advisory and imposed ADR mechanisms. The chapter ultimately argues that, while arbitration has utility, the challenge for the future will be to move beyond investment treaty arbitration to a more holistic approach to conflict management that considers other opportunities, particularly the collaborative design of sustainable dispute resolution systems.

Economic approaches are becoming increasingly prominent in international law. A few years ago, Jack Goldsmith and Eric Posner caused a great stir with their account of The Limits of International Law, in which they argued that international law did not have any effect on state conduct. This contribution reviews two recent books analyzing the effectiveness of international law from an economic perspective. Both authors, Andrew Guzman and Joel Trachtman, take a much more differentiated approach than did Goldsmith and Posner, thus making analytical methods of economics more acceptable for mainstream international law scholarship. Still, this contribution argues that we should be cautious to perceive the economic perspective as a holistic explanation of "how international law works". Economic models are, for methodological reasons, based on certain assumptions. The analytical tools are thus only capable to answer a certain range of questions so that they have to be complemented by other theoretical approaches. Therefore, we have to be very cautious with policy recommendations that are based on a purely economical perspective.

This text traces the contours of U.S. doctrinal developments concerning international commercial arbitration. It explores international commercial arbitration as a bridge that creates symmetry between what the author perceives as an anomaly arising from the disparities between the monolithic framework arising from economic globalization and a fragmented global judicial counterpart. Specifically, American common law discovery precepts are analyzed through the prism of the fundamental precepts of party-autonomy, predictability, uniformity, and transparency of spender, which the author contends to be the rudimentary tenets of both the American common law procedural rubric and the very principles that international commercial arbitration seeks not only to preserve but to enhance. Therefore, as the author asserts, the discovery process endemic to American common law comports more closely with international commercial arbitration both procedurally and theoretically than with those of the ‘taking of evidence’ methodology commonly used in international commercial arbitrations held under the auspices of arbitral institutional bodies.

U.S. International Investment Agreements is the definitive interpretative guide to the United States' bilateral investment treaties (BITs) and free trade agreements (FTAs) with investment chapters. Providing an authoritative look at the development of the BIT program, treatment provisions, expropriation, and other provisions, Kenneth J. Vandevelde draws on his years of investment treaty and agreement expertise as both a former practitioner and a scholar. This unique and well-organized book analyzes the development of U.S. international investment agreement language and strategy within their historical context. It also explains the newest changes to the model negotiating text (US Model BIT 2004) and additional treaties.

By taking up the challenge of documenting how human rights values are embedded in rule of law movements to produce a new language of international justice that competes with a range of other formations, this book explores how notions of justice are negotiated through everyday micropractices and grassroots contestations of those practices. These micropractices include speech acts that revere the protection of international rights, citation references to treaty documents, the brokering of human rights agendas, the rewriting of national constitutions, demonstrations of religiosity that make explicit the piety of religious subjects, and ritual practices of forgiveness that involve the invocation of ancestral religious cosmologies – all practices that detail the ways that justice is made real.

Tuesday, July 14, 2009

Steven R. Ratner (Univ. of Michigan - Law), Jason S. Abrams (Consultant to the United Nations), & James L. Bischoff (Office of the Legal Adviser, U.S. Department of State) have published the third edition of Accountability for Human Rights Atrocities in International Law (Oxford Univ. Press 2009). Here's the abstract:

The fall of dictatorial regimes and the eruption of destructive civil conflicts around the world have led to calls for holding individuals accountable for human rights atrocities. This book offers a comprehensive study of the promise and limitations of international criminal law as a means of enforcing international human rights and humanitarian law. It provides a searching analysis of the principal crimes under the law of nations, such as genocide and crimes against humanity and an appraisal of the most important prosecutorial and other mechanisms developed to bring individuals to justice. After applying their conclusions in a detailed case study, the authors offer a series of compelling conclusions on the prospects for accountability.

This fully updated new edition also contains expanded coverage of the increasing numbers of international criminal trials including the cases of Bosnia, Serbia, and East Timor. It also explores individual accountability for terrorist acts and accountability for acts undertaken in the name of counter-terrorism policy, and provides expanded coverage of aggression and crimes against peace.

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent obligations than generally applicable WTO disciplines. These so-called "WTO-plus" obligations have already been involved in several WTO disputes.

Interpretation of the Protocol presents a new challenge to the WTO adjudicatory body because it contains a large number of substantive obligations of China that exceed the requirements of the WTO agreements. Despite its unique content, the Protocol needs to be interpreted consistently and coherently with all WTO provisions since it has been made an integral part of the WTO Agreement. The Protocol, unfortunately, is not a model of clarity. Its text is not drafted as tightly as the WTO multilateral agreements, and it does not take care to specify the relationship between a WTO-plus provision and the generally applicable WTO disciplines. Moreover, the Protocol fails to articulate any rationale for the special obligations of China. As a result, it can be difficult to interpret the Protocol provisions by following a strictly applied textualist approach. Furthermore, the Protocol includes broad undertakings that go to the heart of China's economic and legal systems. These systemic obligations penetrate deeper into the domestic policy domain of a sovereign nation than any other WTO agreement. Consequently, how to interpret the scope of such provisions becomes a politically sensitive matter.

This paper illustrates the challenge of interpreting WTO-plus provisions in the light of the several WTO disputes, and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. It then proposes three working principles to aid the interpretive process: (1) Identifying the baseline. For each WTO-plus provision at issue, the treaty interpreter should endeavor to identify the corresponding provisions in the WTO multilateral agreements as the baseline rule. Locating the baseline can provide a broad context for the WTO-plus provision and shed light on its rationale. (2) Distinguishing commercial commitments from systemic or domestic policy commitments. Some of the WTO-plus obligations are commercial commitments in nature, whereas others pertain to the reform of China's domestic system. The level of WTO scrutiny should vary depending on the nature of the commitments so that proper balance can be drawn between international and national jurisdictions. (3) Giving due consideration to China’s intention. Although the Protocol has been made part of a multilateral agreement, its obligations are China-specific that do not have quid pro quo on the part of other WTO Members. In light of the de facto unilateral character of such obligations, special care should be taken in ascertaining China’s intention in the interpretive process; when in doubt, the Protocol obligations should be interpreted narrowly.

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines -comparative law, conflict of laws, public international law, and European Union law - have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism - the definition of law, the role of the state, of community, and of space - are altered under conditions of globalization. It addresses interrelations between different legal orders and various ways, both theoretical and practical, to deal with them. And it provides an outlook on the future of global legal pluralism as theory and practice of global law.

Armed conflicts are always harmful for civilians and hence all attempts should be made to avoid them. However, considering that armed conflicts do occur; economic sanctions provide States with a viable alternative. This Article illustrates the need for limitations on the use of economic sanctions. It describes the characteristics of economic sanctions and the existing International Humanitarian Law (IHL) limitations and also suggests that economic sanctions should be further regulated offering three main principles to guide these limitations: the principle of severity, according to which the most severe economic sanctions should be prohibited; the principle of effectiveness, according to which economic sanctions should be allowed only if the State imposing the sanctions can plausibly demonstrate that the sanctions are effective; and the principle of conditionality, according to which the imposing State should declare specific achievable goals for the sanctions, and lift the sanctions immediately when these goals are achieved.